Army Sergeant First Class (E-7) Commisso was a somewhat unsympathetic appellant. In 2013 he became romantically – or, perhaps, unromantically – involved with a Marine Private First Class (E-2) he met while undergoing physical therapy. His case had many of the hallmarks of a modern politicized military sexual assault prosecution: rank disparity, a he-said/she-said allegation, and even distribution of revealing photos of the alleged victim.

Before the case was tried in 2014, the allegations were repeatedly briefed during monthly meetings of a local Sexual Assault Review Board (SARB). CAAF described the purpose of the SARB as “to ensure that sexual assault victims received their legal entitlements throughout the court-martial process,” and the court observed that the “briefings contained only the putative victim’s version of the alleged criminal acts.” 76 M.J. at 319. Three SARB participants were selected to be part of the ten-member general court-martial panel that heard Commisso’s case, and they remained on the panel when it convicted Commisso of numerous offenses and sentenced him to confinement for one year, reduction to E-1, and a bad-conduct discharge.

That those three members were selected for, and remained part of, the panel after such one-sided exposure to the allegations was troubling in its own right, but there was something worse. The three members (two Colonels and a Lieutenant Colonel) concealed their involvement in the SARB and their prior knowledge of the case until after the trial was over.

CAAF decided the Army case of United States v. Commisso, 76 M.J. 315, No. 16-0555/AR (CAAFlog case page) (link to slip op.) on Monday, June 26, 2017. The court finds that the military judge abused his discretion when he denied a post-trial motion for a mistrial that was based on dishonest answers from three members during voir dire (the members concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed). CAAF reverses the findings and sentence and the decision of the Army CCA, and authorizes a rehearing.

Judge Ryan writes for a unanimous court.

Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. He was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence. But the CCA did not discuss the issue that CAAF granted to review, which is:

Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.

In today’s unanimous decision Judge Ryan excoriates the members – two Colonels and a Lieutenant Colonel, all identified by name – for their “lack of candor” (slip op. at 2 and 12) and their “dishonesty” (slip op. at 11) during voir dire, concluding that had they been honest then Commisso “would have had at least a valid basis for challenging one or more of the panel members for cause.” Slip op. at 11.

CAAF will hear oral argument in the Army case of United States v. Commisso, 16-0555/AR (CAAFlog case page), on Tuesday, December 6, 2016, after the oral argument in Rosario. The court will hear oral argument on the following issue:

Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.

Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. The members acquitted Commisso of three specifications of rape. Commisso was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence without discussion of the issue before CAAF.

conducted with all brigade commanders and relevant staff. The meeting would begin by discussing sexual assault prevention and then move into case review. Commanders would take turns briefing the GCMCA on the status of the open cases in their respective subordinate units. Each individual case was depicted on a Power Point slide, consisting of a summary of the facts reported by the alleged victim, the ranks of the subject and alleged victim, and a summary of the services offered to the alleged victim. After case review, “the meeting would progress to more best practices from the unit’s themselves.”

App. Br. at 4 (citations to record omitted). During voir dire all of the members were asked numerous questions about their knowledge of the facts of the case:

the military judge asked the panel whether they knew “Marine Private First Class, [EW], named in the specifications.” (JA 34.) The military judge also asked whether anyone on the panel had prior knowledge of the facts or events alleged in the accused’s case. (JA 34.) Civilian defense counsel asked if any panel member was in a group that dealt with issues of sexual assault in the military, or whether they had ever been involved in the sexual assault response system. (JA 59-60.) Defense counsel also asked “[h]as anyone heard about any of the facts of this case whatsoever?” (JA 57.)

App. Br. at 6-7. Despite having attended numerous SARB meetings where Commisso’s case was discussed, Colonel Forsyth, Colonel Ackerman, and Lieutenant Colonel Arcari all responded in the negative to each of these questions. During the trial, however, they realized that they had been exposed to the case during the SARB meetings but they did not inform counsel or the military judge.

The defense discovered their attendance at the SARB meetings after trial and moved for a mistrial. But the military judge denied the motion concluding, in part, that:

“COL Forseyth [sic], COL Ackerman, and LTC Arcuri are clear they did not recall any specific information or facts from any SARB briefings that might pertain to [Appellant’s] case other than the involvement of an alleged female Marine active duty victim and a male Army NCO/E-7.”

Gov’t Br. at 11 (motification and annotation in original).

CAAF will now review the military judge’s conclusions and decision denying the defense request for a mistrial.

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